August 12, 2019 10:35AM

Will the ABA Endorse An Affirmative‐​Consent Standard In Sex‐​Assault Prosecutions?

Many colleges have adopted a principle known as "affirmative consent," which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student's sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration. 

And yet the American Bar Association is expected to vote as early as today on a resolution sponsored by its Commission on Domestic and Sexual Violence (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The italicized phrase might seem ambiguous, but the chair of the responsible commission, in a Thursday email, spelled out what is intended: "consent to sexual activity must be expressed by words or conduct." No expression of consent, no consent for legal purposes. 

So while the language of the ABA resolution doesn't mention burdens of proof or presumptions, it doesn't need to, as KC Johnson and Stuart Taylor, Jr. argue in today's Wall Street Journal

State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

(Prof. Halley, incidentally, is among four Harvard law professors with feminist bona fides who have challenged the lack of due process in current Title IX proceedings -- the others are Jeannie Suk Gersen, Elizabeth Bartholet, and former federal judge Nancy Gertner -- profiled by Wesley Yang in an excellent new piece for the Chronicle of Higher Education). 

Four days ago more than 100 members of the American Law Institute, the leading scholarly clearing house for discussions of the evolution of the law, came out strongly against the changes, noting that ALI's own membership had overwhelmingly rejected a similar proposal in 2016. The letter was signed by many prominent law professors, judges, and practicing lawyers. Perhaps less surprisingly, the National Association of Criminal Defense Lawyers (NACDL) has helped lead the resistance to the new resolution. 

Also four days ago, per Lara Bazelon on Twitter, the ABA's own Criminal Justice Section "unanimously vote[d] to withdraw co-sponsorship of the sexual assault consent resolution and to ask the House of Delegates to table it."

Let's hope this sends an unmistakable message to the full ABA not to proceed with the resolution. [slightly edited for space and redundancy]